Katz v. East-Ville Realty Co.

249 A.D.2d 243, 672 N.Y.S.2d 308, 1998 N.Y. App. Div. LEXIS 4799

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered April 3, 1997, to the extent it granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment, and order, same court and Justice, entered on or about August 12, 1997, which, insofar as appealable, granted plaintiff’s motion to renew and reargue only to the extent of reducing the amount of the sanctions previously imposed, unanimously affirmed, with costs. Appeal from that part of the order entered April 3, 1997, addressed to the imposition of sanctions, unanimously dismissed, as superseded by the appeal from the order entered on or about August 12, 1997.

Plaintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact, and the IAS Court’s dismissal of the foreclosure action pursuant to CPLR 3211 (a) (1) was, accordingly, appropriate (see, Kluge v Fugazy, 145 AD2d 537). Dismissal was also warranted by reason of plaintiff’s failure to join the party to whom he assigned the mortgage and who, he concedes, possesses a security interest in the property (see, CPLR 3211 [a] [10]).

We see no reason to disturb the court’s imposition of sanctions upon plaintiff, an attorney, and his counsel, given the patently frivolous nature of plaintiff’s foreclosure claim. Absent a conspicuous modification of existing law, the claim was clearly not viable (see, 22 NYCRR 130-1.1 [c] [1]). Concur— Sullivan, J. P., Ellerin, Rubin, Williams and Andidas, JJ.